This study paper seeks to illustrate that the system of adversarial trial, which is written in the constitution as bizarre, inefficient and unjust. Adversarial trial should not be taken to mean presumed innocent of a person though the two are contained is the system of fair justice. The principle underlining the presumption of innocence of a person outlines that a person has to be convicted only in situations where there is enough evidence and no reasonable doubt exists. However, this is not the principle that outlines adversarial trial, one wonders who can say better factual proof is not the accused person. Adversarial trial is not a principle rather it is a right that only has historical roots. Its an outdated practice in our modern society that is highly complex. Nonetheless, fairness in regards to criminal justice is not a one-sided issue. Certainly, the innocent must be left to go, however, it will be unfair to acuity those who are guilty and give them another chance to commit a crime.
Introduction
The adversarial system of law is a type of law that depends on the challenge between two advocates representing their party and involves an independent individual or group of people, in many cases a jury or a judge trying to find out the truth of a case. Different from this, an inquisitorial system has a judge whose responsibility is to look in to a case. The system of adversarial law contains two structures under which trials of the criminal court are conducted that pits tribunal against defence. Justice is appreciated when the most efficient adversary is in a position to convince the jury that hisher opinion on the case is the right one. This paper aims at taking a critical look on the adversarial system as bizarre, inefficient and unjust. In order to demonstrate this, the paper will begin with discussing the fundamental features of the system before taking an in-depth analysis of the system and pointing out the inefficiencies within the system
Historical background of Adversarial system
In order to uphold law and order and maintain a just government, trial has been established a major constitutional institution of England common law. Normally, the composition and judicial proceedings of present courtroom are mainly the outcome of history. Even though settling disagreements using court hearings was known by the Anglo-Saxon as well as England, an official system and way for carrying out these hearings was not known. It was only during the reforms carried out by Henry II in 1166 that some form of process came about. This involved selecting a group of locals and swearing them to only speak the truth concerning local criminal activities. Nevertheless, this was not a jury of trial but a jury of accusation. The ways of getting the truth have from the accused has changed so much. During the medieval trials, getting the truth was done through torture and not witnesses or proof. For example, the only way of evidence for those accused during the time of Assize of Clarendon was by being tortured in water.
Other types of torture were used to try and obtain evidence such as swallowing a holy wafer. But, after some time, continental Europe tried the system of Roman-canonical law of proof that required calculating the evidence. This system needed full proof, which could be gotten from confessing, evidence given by two eyewitnesses, objects of circumstantial proof or a combination of these. The English were not impressed with this kind of calculations and opted to return to there jury system however, they expanded its duties from being accusers to becoming decision makers. Whereas the accusation jury was known as the grand jury, the one carrying out the trial was known as the petty jury. At first, the manner of trial was decided by the accused. Nonetheless, the royal courts gradually agreed to use the jury as the way of deciding the truth about allegations made. In 1275, the statue of Westminster was implemented and those declining to put themselves upon the country were liable to imprisonment. Yet again, these trials cannot be seen as fact-finding in todays sense of trial because the juros were individuals who had prior knowledge in one or another about the situation of the accusations made.
In situations such as a small village with a homogenous society, such juries might as well been an efficient way of fining out the truth. More so, jurors were mostly male landholders who were ready to maintain royal interests. The use of these royal courts was on the increase and the jurisdiction powers of the local community, the feudal landowners as well as the church declined slowly. Yet, has it has been viewed, any monopoly held by the state to carryout investigations and prosecute criminals was throw out. Accordingly, criminal prosecution became mainly an issue of private individuals to organise the means of the law on how to carry out a trial.
There was official manipulation of the criminal proceedings by the king because he has a big monopoly of the jury and thus also punishment, particularly regarding serious crimes. The legal principles remained simple and the level of moral blame was undertaken by the verdict of the jury and not through technical statutes of law. The main reason behind this was a misconception that every criminal was to be hanged during the 13th and 14th century.
Progress to modern system of legal principles was very slow it was only during 1610 that Chief Justice Coke stated that, a person can not be a judge in his own cause, (nemo iudex in suam causam).. The second principle stating that letting the accused to be heard, (audi alteram partem) was as well acknowledged in the beginning of 18th century. However, the accused lacked ways of telling hisher side of story because it was difficult for the accused to bring hisher witness to come and testify for himher. More so, the accused was only allowed to provide sworn evidence in 1898.it was only in the 19th century that main principles of adversarial trial, that includes legal representation, cross-examining the prosecution witnesses, permission to have and examine defendants witnesses, during that time, there was no appeal system, it was only introduced at the beginning of twentieth century. However, even after the appeal system was introduce, there was no clear rules of pre-trial investigation, which were only introduced in 1984, after the enactment of Police and Criminal Evidence Act. More so, there was no independent prosecution method until 1985 after the introduction of Crown Prosecution Service.
The long duration of development of trial system has resulted into the contemporary trial system. This is a system that puts a lot of importance court proceedings. The system allows both sides to present there arguments before a judge and a jury. This differs with the inquisitorial system which applies on going judicial processes of gathering evidence and interviewing witness. People treat common trial as a single, public procedure both in its beginning and end. However, it has been hard to explain the reasons that resulted in adversarial trial processes and not the investigative processes in England. But, the fairly short duration of absolutist kingdom and the effect of the puritan revolution as a reaction of strong state power are given as one of the reasons. Another reason is the historical control of local government over the national government. Private case prosecution was connected with the reflection of a society that resulted from acts of powerful figures within the society.
Present day adversarialism represents the rule of law and that of a government. This is why the agent of the government (the judge) runs the court. One can also compare the competition seen in the court room with that at the market place.
Common law trial characteristics
According to Article 6 of the European Convention on Human Rights, during the determination of any criminal charge against anyone, every body is permitted to a fair and public hearing within a significant time by an impartial and independent tribunal that is created by the law. The 1998 Human Rights Act provides that all authorities of the public, the courts included take into account the jurisprudence as well as its convention. Lawyers who are common would give an argument that the one who is accused will at all times be accorded a justifiable trial and that Article 6 only summarizes those elements that have at all times been characteristic of the trial of the common law, known as, the courts independence, its adversarial nature as well as the priority accorded to procedural justice.
Independence
As far as the constitution is concerned, the courts independence must be there as well as the judges independence from the executive. Decisions can be criticized through the procedures of appeal and review. The national or local government should not interfere. Even though the Lord Chancellor, a cabinet member as well as a head of the government department are the ones that appoint the judiciary, it is hard to do away with judges or magistrates except for misconduct that is extreme. Even in relation to the other agencies and institutions of the criminal justice system itself, the courts autonomously operate and jealously protect their independence.
According to European conventions Article 6, a justifiable trial needs a tribunal that is impartial and independent. In finding out the independency of the judge, the procedures followed by the court are the appointment manner, the tenure duration, the existence of guarantees against pressure from outside and the question whether the tribunal appears to be independent or not.
The court assumed that the office could not appear independent of the executive within the Article 6 meaning. Bodies of administration could perform adjudication but there had to be a chance to criticize before a tribunal that is independent and impartial. The trial is detached from all the events of the past and the judge, together with the jury and the public gallery spectators are hearing evidence for the first time. It is entirely on the evidence that is vended in the court, usually by oral testimony that is formal, that is used in decision making.
It is an autonomy which verges on quarantine the courts decision is not allowed to be infected by information that derives from any source other than the formal rules of evidence, except the assistance that the court can obtain in interpreting the law from appellate court decisions. The jury are not permitted to discuss the with other persons ad the moment they retire, they remain together and incommunicado and there is absolute privilege to their discussions. It is condescension of court to engage a juror in discussing a case.
The judge is usually the overall within the crown court itself. The moment the case has been forwarded to the court, action discontinuance for example by lacking evidence or indictment amendment is subject to the judges consent. Even though there is a dominant authority of the attorney-general to terminate prosecution by entering a nolle prosequi, this power over indictment put emphasis on the judges role as monarch representative and of the conceptualization of crime an offence towards the state.
The queen is seen as the party that is wronged in the indictment and an oath is sworn by the jury to try the matter between the prisoner and the queen. The form of trial belongs as much to constitutional history as to a modern democratic state.
As contrasted to other judges, English judges usually lack any clue about the cases before the trial. They are never involved in supervising any investigation, getting statements from the witnesses or the one accused or taking part in bail decision making. These judges are never consulted over decisions to discharge from prison except only in limited circumstances.
Official independence of the courts from the state is a necessary confirmation on the executive governments power. Impartialness from the other agencies of criminal justice also provides a neutral forum for the courts which is a major part both for due process and adversarial system. But the shortcoming of such isolation is that the judiciary was not willing to be involved in criminal justice policy formulation more so over policy of sentencing, although this is moderately changing.
Adversarialism
In many ways, Article 6 languages reflects the common law, adversarial, trial method and not the investigative system favoured in jurisdictions of civilians. The court of common law which involves magistrates and jury in crown court in decision making does not perform the duty of investigative body, calling and interrogating witnesses on its own initiative.
There is structured hearing as with hearings of the civilians, as a debate within two parties which are the defence and the prosecution. The defence lawyers prepare the case for trial and, in court, the evidence to be produced as well as the witness to be called is determined by the lawyer. They appear as equals in the courtroom and they are unified by the defiant language or prosecutrix as if they are individuals that are private.
There is a massive imbalance between the authority and available resources to the prosecutor as opposed to the accused person. A passive role is played by the court, listening to evidence which has been brought by the parties, who only call witnesses that are likely to progress their cause and who are allowed to attack the reliability as well as credibility of the other sides witnesses. The judge is not supposed to get in the way or perform the duty of the investigator and this is the main difference between countries that embrace common law and other jurisdictions of Europe.
One justification of the adversarial system of law is in the right to confront the complainant and the evidence. Confrontation technique which is known as cross-examination is well established in the common law and Article 6(3) (d) guarantees it. Confrontation indicates that the witness should be present so as to test hisher credibility as well as the reliability of the evidence.
The need for physical presence of the person testifying tends to prolong trials because even where the evidence is not controversial, the person testifying is usually present. Trials of criminals do not use pleadings that are pre-trial written, as happens in civil cases, even if this process will decrease length of a trial by concentrating on those dispute matters. Presently, there are a number of chances for pre-trial hearings to deal with matters that may come up at the time of the trial.
The judge plays the role of the umpire, by ensuring that evidence and procedural rules are followed. The moment the parties have forwarded their evidence and came up with their arguments, the jury is directed by the judge on the law to be used and is reminded of the evidence it had heard. Initially, the jury is expected to come up with questions of fact, make up their minds within contradictory accounts as to what happened and then settle on the innocence or guilt of the defendant.
The jury is plunged into the argument right from the start of the trial. They give an opening speech by the counsel of prosecuting and have to make the best sense possible until they are rescued by the judge at the end. A judge from America compared the experience to asking jurors to watch a game of baseball and decide the winner without informing about the rules until the game is over.
One conspicuous omission from the trial proceeds to be the victim. The victim has no right to speak, neither a place to sit nor to be presented. This is maybe the consequence of the adversarial law on one side and on the other, the conceptualization of the crime as a mistake against the society. After one has made a complaint control is released.
The victim still requires a number of legitimate interests the first is the need of information but there is lack of statutory rights to give information on the course of the trial the second is the right to a role in the decision whether or not to prosecute but the wishes of the victim are not decisive and may or may not be seriously taken by the prosecution or the police the third is the right to respect in testifying in court where victim treatment in the box of witness edges on scandalous and lastly there are compensation issues.
The absence of protection of the victims and witnesses was for a number of years demonstrated in cases of sexual assault where defence was frequently a thinly veiled attack on the sexual morality and victims character, especially when the rape victim is cross-examined about her past sexual history by the defendant. In such cases, the skilful interests of the prosecutor did not essentially extend beyond those of the victim.
Legislation of today has introduced much protection for the witness that is vulnerable and preventing those accused of rape from questioning of the victim that is intrusive. In cases of homicide, a provocation plea may well involve an attack on the character of the deceased victim and the relatives of the victim might seek to be represented independently in order to evaluate witnesses.
In some jurisdictions in Europe, the victim has a right to be presented legally. For example in France, the victim can be joined to an action as une partie civile as well as having locus standi in all prelude issues and can argue during the trial that the charge is inappropriate, to object to a certain level of questioning or to request that some questions be directed to a witness.
In Germany the victim can at times be treated as an auxiliary prosecutor Nevertheless the practical effect may be little and the role is very symbolic as the prosecution conduct is entirely left or given to a public prosecutor. Reforms of this kind have been considered but later rejected.
Challenges facing the adversarial system
The system of adversarial law in criminal justice is facing many challenges. Some people even argue that the system is under siege. While many are seriously considering the inquisitorial system of law, there are many calls in many countries for different approaches in criminal justice processes.
Specifically, the aspect of right to silence in proceedings of criminal cases is facing serious challenges. In most instances, depending on this right the defence uses an approach that delays and lengthens proceedings of criminal cases by disputing every point instead of majoring on the issues that are real. The system of legal aid is not in a position to withstand the consequent exhaust of resources that are limited. The community cannot withstand the costs involved when an accused that is funded privately develops such tactics and comes up
with many trials of a proportion that is unreasonable.
Therefore, it is not amazing that this motion has come under government investigation with calls for rectification for the criminal justice interest system interest. Even though there has been a strong opposition, the government of the United Kingdom has passed a legislation to rectify right to silence both at the stage of investigation and the time of criminal proceeding.
In Australia for instance, the intricate trials of fraud from the 80s provided a momentum for change. Realizing that prolonged criminal trials have an adverse impact on the system of criminal justice, by the year 1992, all the governments of Australia came to an agreement that reform was inevitable. The most prolonged trial in the history of Victorian, Jetcorp trial of Grimwade and Messrs Wilson is a very good example. This trial lasted for over 23 months. Even though illness partially contributed to the extensive delay, evidence complexity as well as the large amount of records presented to the court contributed a lot.
The counsel behind one of those accused criticized the entire evidence even though the defence of the accused was limited to knowledge of a prospectus that is false. The remaining accused refused to acknowledge anything leaving the entire case pending. Disagreements on counsel submissions that lasted for not less than 48 hours were all rejected. The approximated costs of prosecution for committal as well as the two trials were almost 1.6 million.
Therefore it is supposed to be clearly understood that fraction of the duty of all counsel in any criminal or trial is to work hand in hand with the court as well as each other to ensure that justice is observed within the jury system. For the current litigation adversarial system to survive, it requires no less. The community that the system is designed to serve, cannot straightforwardly support the extravagant conduct which was behind exacting twenty three months dedication to this retrial, a part that is not proportionate of which was as a result of Wilsons counsel conduct.
This is not to reject that counsel are warranted and gratified to set up such tactic and discretion as the suitable protection of the interests demands of their clients. Whether the lawful representation cost is publicly or privately accepted, counsels need to know that they are practicing a privilege and meeting a responsibility by appearing in a court of law and survival of both privilege and duty will be minimal in the system of justice of which the court constitutes.
Unfortunate enough, admonition of the courts is not sufficient. It is obvious that procedures as well as ideology associated with adversarial system of law in the system of criminal justice permit skills of delay and obfuscation that do not serve the interest of the public or justice administration.
The criticism to the justice administration illustrated in Grimwade and Wilson can only be avoided by legislative alterations to the adversarial system in two areas an increased responsibility for the jury in controlling proceedings of criminal cases and re-evaluation of the right to silence as it is pictured for application to the trial.
It is the describing quality of the system of adversarial law that the parties are ones to control the criminal proceedings. The evidence as well as arguments that will be forwarded to court is decided by the parties. The parties also come up with the witnesses that will be called. Thus, if this can go unchecked, the parties can complicate and prolong the proceedings as they wish. Particularly in major trials of fraud, the parties can utilize this control over court proceedings to skilfully prolong the trial and confuse the matters before the jury.
In the modern days, the predicament of lawful aid has intensified public recognition that long or prolonged trials place costs burden that are unbearable on the public as well as the defendant. Failing to bear the common need for reform, a good number of legal professions have been rigid to accept the need for alterations in behaviour and attitude for the survival of the adversarial system. Due to this, the government as well as the judiciary has to be involved.
The diversity and content of this involvement will essentially be hindered by the adversarial system and fairness considerations to both the community and the accused but it is necessary that the jury practices more control over the court proceedings. This can be achieved without unfairly tampering with the parties rights. Today, using powers and discretions that exist, the jury owns the legitimacy to practice some control over the parties conduct, but there is a requirement for legislation authorization and giving support to judges to avoid delay and ensuring that only issues that are relevant are dealt with.
The society is no longer satisfied with the ideology that litigation is a pure affair within the parties a judge a passive referee with no power. Values of the community are inexorably inclined towards more aggressive judging. In a number of western countries it is now realized that judges are supposed to assist litigants. There is priority that is now being given to intensified judicial powers and many are diverging away from the customary adversary model.
This initiative is usually justified as crucial in increasing the effectiveness of the judicial system. This makes it the judges responsibility to ensure a flexible and orderly progress of the litigation. Another vital justification is the approval of judicial responsibility to find the right objective to enable attainment of justice.
In his argument, Justice Ipp considered court proceedings and proposed that judges roles be improved to minimize waste of time and too much elaboration while presenting the evidence. While the jurys authority to intervene should be minimal in criminal trials, it remains the jurys duty to both increases the effectiveness of the criminal proceeding, as well as ensuring the court gets the truth.
The view calls for the judiciary to independently combine with individual responses from the members of the society, at whose service only the justice system must work. The individuals who continue to campaign for the limited view of the adversarial system in jurisdiction system appear to look down upon the communitys right to have efficient trial procedure. The interest of the public is associated with the accused rights and the entire interest of the community.
It cannot be doubted that the initial criticisms to the customary adversarial system resulted due to complex trials of fraud. These trials results in specific challenges for adversarial system. Usually in these types of trials, proof of multiple commercial relationships and a complexity of transactions are comprised in many documents to be forwarded and discussed in court. In most Jurisdictions of the United Kingdom, rules that are evidentiary and procedural have been established to appreciate this evidence, but the lawful profession has been rigid in accepting reform narrowing of matters, evidence presentation as well as counsel conduct.
According to many, it is not in the best interest of the defence to participate for clarity of issues and simplicity of evidence presentation even where the specific evidence is not under any challenge at all. The requirement for modification of complex criminal trials was realized in 1992 by all the Australian attorney generals. The Standing Committee of Attorneys-General (SCAG) came up with an agreement of administrative and legislative measures to generally tackle the complex criminal trials and particularly deal with complex fraud trials.
To give judges a chance to practice more control over pre-trial proceedings together with the real trial to make trials less time consuming to limit the issues to be handled by the jury to streamline evidence presentation to the jury, including allowing evidence to be presented in a manner which will assist the jurys understanding of the evidence.
Reforming the adversarial system
The adversarial system is normally criticised since it fails to adequately put emphasis on establishing the truth, this is because parties and not state machines control the system. Judges on their part do not have an active role in searching for the truth. Thus there is a possibility for injustice to occur. This is because the prosecutors seek for conviction without looking for truth, while judges are only passive directors not concerned or accountable for establishing the truth. It is against this background that various countries have been trying to reform their adversarial law systems.
For instance, The Australian Law modification Commission has published matters paper on the modification of the adversarial system in civil proceedings. In meticulous, the paper discusses the way in which the jury in the civil jurisdictions is becoming more energetic in describing the matters in dispute and moving cases frontward to a hearing.
The ALRC paper is only addressed to federal civil procedures. While an expanded role of judges in the pre-trial area in supporting parties to resolve disagreements and reach a settlement might appear to have petite submission in the criminal jurisdiction, some aspects of official management are predominantly relevant to composite criminal trials.
The paper remarks that judges can exploit pre-trial processes to define and slim the matters and to reach agreement on details. Judges can also play a role in placing time restrictions on the achievement of pre-trial progressions. In the course of the trial, judges can exploit discretions and system of confirmation to make possible the staging of proof in a clear and succinct form and to control questioning which is unduly extensive or irrelevant.
The Attorney-General in the United Kingdom has asked the Law modification Commission in that nation to look into the States criminal and civil officially permitted systems. In this circumstance the Commission will scrutinize the right of an accused person to stay silent and consider procedures to force accused persons to disclose their defence at a premature juncture.
The Chief Minister of the Northern Territory, now also the Attorney-General, has similarly called for a review of the right to silence. He has indicated a desire for reform that encompasses the UK model in the investigative stage.
Judiciary members have added their voices to calls for modification in this area. In a document presented to the 1996 NSW Legal Convention, Justice Davies of the Queensland Court of Appeal also recommended nurturing the United Kingdom legislative changes. He referred to a reasonable balance between the wellbeing of a person suspected of a crime and the public concern in having criminals brought to justice. While Justice Davies realizes the rights as complete, he suggests that the jury should be able to depict from the failure to answer, such presumption as appear proper. He observes that although the courts have come up with inroads into the rule, legislative transformation is necessary. He points to s section 34 and section 35 of the United Kingdom Criminal Justice and Public Order Act 1994 which adjust the right to silence at both the court and investigative stage.
Under section 34 of the United Kingdom Act, if evidence is given in criminal proceedings that the accused either before being charged with the offence, while being questioned under caution, or after being charged with the offence or formally informed that she might be impeached for the offence, failure to mention any reality relied on in his defence in the procedures (and which he could logically be expected to declare the magistrate, court or jury may illustrate such presumptions from the failure as seem proper.
As explained the adversarial system of law is a type of law that depends on the challenge between two advocates representing their party and involves an independent individual or group of people, in many cases a jury or a judge trying to find out the truth of a case. The process of ensuring criminal justice is founded on the principles that have been evolving over time. Of these principles, the most fundamental is that, a person is innocent until heshe is proved guilty beyond any reasonable doubt. Supposing there is a reasonable doubt, the accused is undeniably entitled to this doubt. Certainly, this will continue to be the situation, however there is a strong feeling of frustration by the public on the manner in which this process works and its results. This can be increased by prominent person cases which leave a great feeling of unhappiness. Or their unhappiness may be based on the general failings, for example, case delays. Regarding the adversarial system, there are several challenges it faces, specifically, the aspect of right to silence in criminal cases process is facing serious challenge as when want it removed. Thus in order to ensure that justice is carried out fairly to all, there is great need to transform the adversarial system and make it be acceptable and a fair system.
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